ORDER
1. Aggrieved against the order of the Commissioner in his proceedings C. No. 1121 (107-117)/111 of 1987 dated 18-3-1988, the petitioners have approached this Court to quash the said order in relation to the assessment years 1964-65, 1971-72, 1973-74, 1975-76 and 1976-77 completed by the first respondent and direct him to set aside the orders passed by the first respondent on various grounds in Writ Petition No. 4221 of 1989.
2. In Writ Petition No. 4220 of 1989, the petitioners have prayed for a writ of prohibition prohibiting the first respondent from taking any proceedings against the petitioner in respect of arrears under the Income Tax Act, 1961 (‘the Act’) or the Wealth Tax Act, 1957 of Venkata Naicken Trust, Randalls Road, Madras-7, in respect of assessment alleged to have been completed on the Venkata Naicken Trust by the first respondent.
3. The first petitioner is a trust and the second petitioner is one Gouthaman, great grandson of Late Mandy Venkata Naicker who created the Trust known as Venkata Nicken Trust. It is stated that by notices dated 23-81981 and 1-2-1988 containing demands of taxes and penalties levied on the Venkata Naicken Trust were served on the second petitioner. Thereafter, he met the first respondent and informed him that there is no income from Venkata Nickel Trust and he was not liable to pay any portion of the amount. Since the first respondent did not accept the plea made by the second petitioner, he preferred a revision petition to the Commissioner, Tamilnadu III, Madras. In his order dated 18-3-1988, the second respondent after accepting the petitioners’ case has held that the penalty proceedings in relation to the assessment years 1954-55 to 1963-64, 1 ~6566 to 1970-71 could not be enforced and, accordingly, he cancelled the penalties levied for the aforesaid years. However, for the assessment years 1964-65, 1971-72, 1972-73, 1973-74, 1975-76 and 1976-77, he observed that it was not possible to state that those assessments had been properly made or that demands have been raised without giving the assessee an opportunity of being heard. In such circumstance, the petitioners have filed Writ Petition No. 4221 of 1989 and as a consequential relief they also prayed for writ of prohibition against the respondents in Writ Petition No. 4220 of 1991.
4. In the light of the above factual position, I have heard Mrs. Hema, the learned counsel appearing for the petitioners and Mr. S.V. Subramaniam, the learned senior counsel for respondents.
5. After taking me through the earlier orders passed by the Income Tax Officer, revision made by the petitioners as well as the order of the Commissioner dated 18-3-1988, the learned counsel appearing for the petitioners contended that having accepted the case of the petitioners for the assessment years 1954-55 to 1963-64, 1965-66 to 1970-71, committed an error in rejecting the similar claim made for the assessment years 1964-65, 1971-72, 197273, 1973-74, 1975-76 and 1976-77. She has also contended that the Commissioner has committed error in shifting the burden on the assessees with regard to service of notice. The learned senior counsel appearing for the revenue, after taking me through the order of the Commissioner has contended that there is no order imposing penalty against the petitioners. However, in the light of the statement of facts made by the Commissioner he has fairly admitted that the order of the Commissioner dated 18-3-1988 is not clear and more particularly in the absence of the records from their office.
6. I have carefully considered the rival submissions.
7. There is no dispute that, now we are concerned with the order passed by the Commissioner with regard to the assessment years 1964-65, 1971 -72, 1972-73, 1973-74, 1975-76 and 1976-77. It is the definite case of the assessee that the orders relating to the above said period were passed without giving an adequate opportunity to them. The Commissioner on the basis of the orders of the Tribunal rightly cancelled the penalty proceedings initiated in respect of the assessment years 1954-55 to 196364,1965-66 to 1970-71. However, coming to the assessment years 1964-65, 1971-72, 1972-73, 1973-74, 1975-76 and 1976-77 without any discussion and after holding that the assessee has not able to produce any evidence that there was no service of notice refuse to interfere with regard to the orders passed in those assessment years and the penalties levied. The said approach of the Commissioner cannot be sustained. When the assessee pleads that he has not been properly served with any notice, it is for the department to place the relevant material to substantiate their plea that the assessee was served with proper notices. As stated earlier, the impugned order is also not clear. Even the learned senior counsel appearing for the revenue has stated that, no penalty proceedings initiated against the petitioners. In the absence of particulars in the impugned order coupled with the absence of records from the revenue, 1 am constrained to accept the argument of the learned counsel appearing for the petitioners and, consequently, quash the order passed by the Commissioner dated 18-3-1988 and remit the matter to him for fresh disposal.
8. Net result, Writ Petition No. 4221 of 1989 is allowed, the order of the second respondent-Commissioner of Income-tax, dated 18-3-1988 is quashed and the matter is remitted to the said authority for fresh disposal in relation to the assessment years 1964-65,1971-72,1973-74,1975-76 and 1976-77 and pass orders in accordance with law after affording reasonable opportunity to the petitioners.
9. In the light of the order in the abovesaid writ petition, till such order is passed by the Commissioner, it is not open to the first respondent, viz-, the Income Tax Officer, Trust Circle 1 (2), Madras, to take any proceeding against the petitioners in respect of the arrears of income-tax or wealth-tax with reference to the assessment years mentioned above. Accordingly, Writ Petition No. 4220 of 1989 is allowed to the extent mentioned above. However, there will be no order as to costs in both the writ petitions. Consequently, W.M.P. No. 6203 of 1989 is closed.